COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00223-CV

MARTHA SULLIVAN 

AND DENNIS SULLIVAN

APPELLANT

V.

THE CITY OF

FORT WORTH, TEXAS

APPELLEE

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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION ON REHEARING1

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We have considered Appellee‘s motion for rehearing. We deny the motion 

but withdraw our February 3, 2011 opinion and judgment and substitute the 

following.

 

1See Tex. R. App. P. 47.4.
2

Appellants Martha and Dennis Sullivan (the Sullivans) appeal the trial 

court‘s order granting the City of Fort Worth‘s (the City) plea to the jurisdiction. 

The City claimed governmental immunity from the Sullivans‘ claims.

Background

One evening in 2007, the Sullivans attended their granddaughter‘s 

wedding, which was held in the Japanese Garden (the Garden), part of the cityowned Fort Worth Botanic Gardens. While leaving the wedding, Mrs. Sullivan fell 

on one of the designated footpaths, breaking her ankle. The Sullivans claim that 

the winding path, which included stone and wood steps, was inadequately lit and 

that they had to make their way in the dark. Mrs. Sullivan could not see the 

edges of the steps and misjudged the distance between the steps, causing her

fall. The Sullivans alleged in their petition, among other things, that the City 

failed to properly construct, install, inspect, maintain, repair, and light the 

pathways; to provide handrails or adequate lighting; and to warn the wedding 

guests of the nature and condition of the stairs. The Sullivans claimed that the 

City‘s governmental immunity was waived under the Texas Tort Claims Act. See

Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–.109 (Vernon 2011).

The City filed a plea to the jurisdiction, arguing that the trial court lacked 

subject-matter jurisdiction as a matter of law because the claims were barred by 

governmental immunity. See id. § 101.056. As admitted in their brief on appeal, 

the City‘s argument in their plea to the jurisdiction was not that the Sullivans 

failed to allege a premises liability cause of action but that it was not an 
3

actionable claim because the Sullivans‘ allegations of negligence were for 

discretionary decisions for which there is no waiver. The City alternatively

argued that if it was not immune, the Recreational Use Statute applies because 

the Sullivans were engaging in recreation at the time of the accident. See Tex. 

Civ. Prac. & Rem. Code Ann. § 75.002 (Vernon 2011). Under the Recreational 

Use Statute, the City would only owe the Sullivans the duty it would owe to a 

trespasser, id., and the City argued that the Sullivans could not show that it 

violated that duty.

After a hearing, the court granted the City‘s plea to the jurisdiction. The 

Sullivans requested findings of facts and conclusions of law, but the court 

refused, claiming the hearing was not evidentiary and thus, findings of facts and 

conclusions of law were not appropriate. In two issues, the Sullivans argue that 

the trial court erred in granting the City‘s plea to the jurisdiction because the 

Sullivans have properly alleged a premises liability cause of action under the 

Texas Tort Claims Act and because the Recreational Use Statute does not apply. 

For the reasons set forth below, we affirm the trial court‘s judgment in part and 

reverse and remand in part.

Standard of Review

Whether the trial court has subject-matter jurisdiction is a question of law 

that we review de novo. Tex. Natural Res. Conservation Comm’n v. IT–Davy, 74 

S.W.3d 849, 855 (Tex. 2002). A plea to the jurisdiction is a dilatory plea that 

challenges the trial court‘s subject-matter jurisdiction. Bland Indep. Sch. Dist. v. 
4

Blue, 34 S.W.3d 547, 554 (Tex. 2000). It is used to defeat a cause of action 

without regard to whether the claims asserted have merit. Id.

The plaintiff has the burden of alleging facts that affirmatively establish the 

trial court‘s subject-matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of 

the plaintiff, look to the pleader‘s intent, and accept the pleadings‘ factual 

allegations as true. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 

226 (Tex. 2004). If, as in this case, a plea to the jurisdiction challenges the 

existence of jurisdictional facts, we consider relevant evidence submitted by the 

parties that is necessary to resolve the jurisdictional issues. Id. at 227; Bland, 34 

S.W.3d at 555.

The plea to the jurisdiction standard generally mirrors that of a traditional 

motion for summary judgment. Miranda, 133 S.W.3d at 228; see Tex. R. Civ. P. 

166a(c). The governmental unit is required to meet the summary judgment 

standard of proof for its assertion that the trial court lacks jurisdiction. Miranda,

133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff is 

then required to show there is a disputed material fact regarding the jurisdictional 

issue. Id. We take as true all evidence favorable to the nonmovant, and we 

indulge every reasonable inference and resolve any doubts in the nonmovant‘s 

favor. Wise Reg’l Health Sys. v. Brittain, 268 S.W.3d 799, 805 (Tex. App.—Fort 

Worth 2008, no pet.) (citing Miranda, 133 S.W.3d at 228). If the evidence 

creates a fact question regarding jurisdiction, the trial court must deny the plea to 
5

the jurisdiction and leave its resolution to the factfinder. Miranda, 133 S.W.3d at 

227–28. But if the evidence is undisputed or fails to raise a fact question on the 

jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter 

of law. Id. at 228.

Discussion

I. Premises Liability Claims Under the Tort Claims Act

The City claims governmental immunity from the Sullivans‘ suit. Unless 

waived by the State, governmental immunity defeats a trial court‘s subject-matter 

jurisdiction. Id. at 225. The Texas Tort Claims Act waives governmental 

immunity for certain torts, including personal injury ―caused by a condition or use 

of tangible personal or real property if the governmental unit would, were it a 

private person, be liable to the claimant according to Texas law.‖ Tex. Civ. Prac. 

& Rem. Code Ann. §§ 101.021, .025. The Act also contains a discretionary 

powers exception, which preserves immunity for a claim based on

(1) the failure of a governmental unit to perform an act that the 

unit is not required by law to perform; or

(2) a governmental unit‘s decision not to perform an act or on its 

failure to make a decision on the performance or 

nonperformance of an act if the law leaves the performance or 

nonperformance of the act to the discretion of the 

governmental unit.

Id. § 101.056. The discretionary powers exception avoids ―judicial review or 

interference with those policy decisions committed to the other branches of 
6

government.‖ Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 

2007).

Courts employ two different tests for determining what constitutes a 

discretionary decision. Id. One test distinguishes between policy and 

operational-level decisions, such as the distinction between the policy of when 

and under what circumstances to release water from a spillway and the 

operational decision of the volume of outflow. See State v. Terrell, 588 S.W.2d

784, 788 (Tex. 1979). The other test distinguishes between design and 

maintenance, such as the distinction between designing a bridge without lighting 

and failing to maintain lighting that was installed. See Tarrant Cnty. Water 

Control v. Crossland, 781 S.W.2d 427, 433 (Tex. App.—Fort Worth 1989, writ 

denied). In employing these tests, we must liberally construe the Tort Claims 

Act, Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 170 (Tex. 1989), while 

also recognizing that the waiver of immunity is ―limited, not unlimited,‖ Dallas 

Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 

1998).

The Sullivans‘ claims can be divided into four categories: Claims 

regarding the City‘s maintenance of the Garden; claims regarding the adequacy 

of lighting; claims regarding the safety measures implemented; and claims that 

the City failed to warn them about the condition of the stairs.

The Sullivans first claim that the City failed to maintain the trees and other 

greenery around the lights to prevent the trees from blocking the lights. 
7

Specifically, they pleaded, ―Nearby trees blocked any natural or generated light 

that might have been available, and foliage from the trees blocked existing lights 

in the trees.‖ The affidavit of Erdie Allsup, the Executive Director of the Fort 

Worth Botanical Society, which was attached to the City‘s plea to the jurisdiction, 

supported the Sullivans‘ factual allegation that lights were placed in the trees 

―along the pathways to provide light . . . so that guests of a lessee would be able 

to follow a pathway back to their cars.‖ Further, Allsup agreed in her deposition 

that if the lighting in the area where the fall took place was not adequate, that 

would create a dangerous condition for persons descending the stairwell at night. 

In his deposition, Henry Painter, the Director of the Fort Worth Botanic Gardens,

stated that it was possible for foliage from the trees to block the light and that 

foliage would have to be maintained in order for some of the lights to shine down 

to the path. Foliage trimming is a maintenance decision for which courts have 

repeatedly held that governmental immunity is waived under the Tort Claims Act. 

See, e.g., City of Irving v. Seppy, 301 S.W.3d 435, 442 (Tex. App.—Dallas 2009, 

no pet.) (holding that the city was not immune from appellants‘ claims regarding 

the maintenance of the catwalk from which decedent fell); City of Dallas v. Heard, 

252 S.W.3d 98, 108 (Tex. App.—Dallas 2008, pet. denied) (holding that pleading 

that the city failed to maintain security cameras was sufficient to allege a 

premises defect claim). The City claims the maintenance decisions are 

―discretionary‖ because they require approval. But the test is not whether 

decisions require approval. Most acts performed by subordinate government 
8

employees require some sort of approval from a superior. The test divides 

protected policy decisions from the implementation and maintenance of that 

policy. The policy decision to keep the park maintained, as opposed to letting it 

grow wildly, is a protected discretionary decision. The subsequent acts to 

implement that policy of trimming trees are not protected. See Flynn, 228 

S.W.3d at 658 (holding that decisions concerning timing and direction of water 

spray were not protected).

The Sullivans have claimed that the City did not provide adequate lighting

by failing to install enough lights and failing to properly place the lights. The City 

is immune from liability for its decision whether to install lights in the Garden to 

make it usable at night. See Crossland, 781 S.W.2d at 433. Further, the City is 

immune for the original design of the Garden, which includes where light sources 

will be located and the number of those locations. However, contrary to the 

City‘s repeated assertions, the Sullivans‘ pleading also contains allegations of 

negligence for failing to provide adequate lighting by alleging non-design or 

maintenance issues. Specifically, the Sullivans allege that the City ―failed to 

properly . . . inspect, maintain, repair and light the stairs.‖ In its motion for 

rehearing, the City isolates an individual allegation to support its position that the 

Sullivans were merely asserting a claim based on the design decision not to light 

the foot of the stairs. This completely ignores the remaining detailed allegations 

of maintenance issues. Once the City decided to make the Garden available to 

visitors in the evening, it is not immune from liability for the subsequent decisions 
9

involved in implementing that policy, such as the wattage of the light bulbs or 

failure to inspect and replace burned-out bulbs to avoid inadequate lighting. The 

City chose not to present evidence at the hearing on the plea to the jurisdiction 

that the original design encompassed decisions such as wattage or replacement 

of the light bulbs.

2

 These are operational decisions for which immunity is waived. 

See Tex. Civ. Prac. & Rem. Code Ann. § 101.056; Flynn, 228 S.W.3d at 658 

(―[T]he decisions here concerning when and where the water was to spray were 

operational- or maintenance-level decisions, rather than policy formulation.‖).

The Sullivans have also made claims that the City failed to install safety 

measures other than lighting to make the pathways safely traversable at night, 

such as handrails along the entire path. These claims address the design of the 

Garden and the City retains its immunity from such claims. See Crossland, 781 

S.W.2d at 433. The Sullivans allege a failure to provide safety measures by 

failing to provide temporary and portable lighting. These claims are clearly 

challenges to the City‘s policy decisions or its failure to act when no particular 

action is required by law and these claims are not actionable. See Tex. Civ. 

Prac. & Rem. Code Ann. § 101.056; see also State v. Miguel, 2 S.W.3d 249, 251 

(Tex. 1999) (holding that the decision as to what safety or warning system to use 

is discretionary). As to the Sullivans‘ claims that the City failed to warn them of 

 

2

In reviewing a plea to the jurisdiction, we accept the pleadings‘ factual 

allegations as true and resolve any doubts in the nonmovant‘s favor. Miranda,

133 S.W.3d at 226, 228. It was thus the City‘s burden to provide evidence 

supporting its assertion that the trial court lacks jurisdiction. Id. at 228.
10

the condition or nature of the stairs, the Sullivans do not claim that the steps 

were damaged or in a state of disrepair. These claims are merely a recasting of 

their other claims against the design of the Garden, and the City is immune from 

liability for the design of the Garden. See Salcedo v. El Paso Hosp. Dist., 659 

S.W.2d 30, 32 (Tex. 1983) (holding that complaints about ―some condition‖ of 

property require allegations of defective or inadequate property).

In sum, the City is not immune from those claims which attack its 

operational decisions; to wit, the claims against the maintenance of the lighting 

and the foliage in the Garden. We continue our analysis of those claims below to 

determine the duty owed and whether the Sullivans pleaded facts to support a 

cause of action based on that duty. As to the claims which attack the design of 

the Garden, we sustain the trial court‘s ruling that it has no jurisdiction over them.

II. The Recreational Use Statute

The City argues that, for the claims for which it is not immune, the 

Recreational Use Statute applies. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 75.002(c) (Vernon 2011). The Recreational Use Statute states

(c) If an owner, lessee, or occupant of real property other than 

agricultural land gives permission to another to enter the 

premises for recreation, the owner, lessee, or occupant, by 

giving the permission, does not:

(1) assure that the premises are safe for that purpose;

(2) owe to the person to whom permission is granted a 

greater degree of care than is owed to a trespasser on 

the premises; or
11

(3) assume responsibility or incur liability for any injury to 

any individual or property caused by any act of the 

person to whom permission is granted.

Id. This limitation on liability does not apply where the owner, lessee, or 

occupant has been ―grossly negligent or has acted with malicious intent or in bad 

faith.‖ Id. § 75.002(d). ―Recreation‖ is defined as

an activity such as:

(A) hunting;

(B) fishing;

(C) swimming;

(D) boating;

(E) camping;

(F) picnicking;

(G) hiking;

(H) pleasure driving, including off-road motorcycling and off-road 

automobile driving and the use of all-terrain vehicles;

(I) nature study, including bird-watching;

(J) cave exploration;

(K) waterskiing and other water sports;

(L) any other activity associated with enjoying nature or the 

outdoors;

(M) bicycling and mountain biking;

(N) disc golf;

(O) on-leash and off-leash walking of dogs; or

(P) radio control flying and related activities.

Id. § 75.001(3).

The City makes three arguments as to why the Recreational Use Statute 

applies. First, the Japanese Garden is a city park and thus its purpose is for 

recreation. Second, the wedding reception involved a meal and thus constitutes 

―picnicking.‖ Third, an outdoor wedding, such as the one that the Sullivans 

attended, is an ―activity associated with enjoying nature or the outdoors.‖
12

Statutory construction is a legal question we review de novo. City of 

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In construing statutes, 

we ascertain and give effect to the legislature‘s intent as expressed by the 

language of the statute. Id. We construe a statute according to the plain 

meaning of its words unless a contrary intention is apparent from the context, or 

unless such a construction leads to an absurd result. Id. at 625–26.

As to the City‘s first argument, the Texas Supreme Court has held that it is 

not the landowner‘s or the injured party‘s intent for the land that matters but what 

the injured party was doing at the time she was injured that controls. City of 

Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002). Thus, the fact that the 

Japanese Garden is a park is not determinative of whether the Recreational Use 

Statute applies.

As to the second argument, we believe it stretches the definition of 

picnicking to include a seated wedding reception dinner. The City claims, without 

support, that all meals taken outdoors are ―by definition‖ a picnic. The definition 

in Webster’s Dictionary, however, describes a picnic as ―a social entertainment at 

which each person contributes food to a common table; . . . an excursion or 

outing with food usu[ally] provided by members of the group and eaten in the 

open.‖ Webster‘s Third New International Dictionary 1711 (2002). The 

Japanese Garden has its own restaurant which is the exclusive caterer for events 

at the Garden, including the Sullivans‘ granddaughter‘s reception, and picnicking 

is not allowed in the Garden. The City has not argued that dining at a restaurant 
13

is recreation as defined by the statute. While we do not believe the definition of 

picnic necessarily hinges on who brings the food, we do think that a wedding 

reception dinner is more akin to al fresco dining at the Garden‘s restaurant than 

to a picnic as traditionally understood. In any event, the Sullivans were not at the 

Garden to eat, they were there for a wedding. The reception meal was one part 

of the evening, and Mrs. Sullivan was not injured while she was dining. The fact 

that food was served and consumed as one stage of a sequence of events at a 

wedding does not mutate the entire event into a picnic.

Finally, we must address whether a wedding itself is ―recreation.‖ The City 

does not argue that all weddings are recreation, just outdoor weddings because 

they incorporate a natural ―ambiance.‖ Webster’s Dictionary defines recreation 

as synonymous with diversion or play. Webster‘s at 1899. If we had to 

categorize all of human activity as either work or play, then perhaps we would 

define a wedding as recreation. But we do not think the statutory definition of 

recreation is so broad as to encompass all activity beyond work as recreation as 

long as it is conducted outdoors. See Act of May 30, 1981, 67th R.S., ch. 349, 

1981 Tex. Gen. Laws 934 (showing that the original version of HB 749 included 

―visiting historical, archaeological, scenic, or scientific sites‖ in definition of the 

recreation but the language was removed). No other activity listed in the statute 

would so depend on its location. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 75.001. As Justice Hankinson stated in her dissent in Torres, the list of 

activities which are considered recreation does not indicate a legislative intent to 
14

―expand the scope of the statute to all activities that occur outdoors.‖3 89 S.W.3d 

at 618.

The doctrine of ejusdem generis and the similar doctrine of noscitur a 

sociis apply to restrict the potentially broad meaning of ―any other activity 

associated with enjoying nature or the outdoors.‖ We employ these rules to 

construe specific terms no more broadly than the legislature intended. City of 

San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). Under ejusdem 

generis, when general words follow specific examples, we treat the general 

words as limited and apply them only to the same kind or class as those 

expressly mentioned. Id. Noscitur a sociis means that the meaning of particular 

words in a statute may be ascertained by reference to other words associated 

with them in the same statute. Id.; see also Gustafson v. Alloyd Co., Inc., 513 

U.S. 561, 575, 115 S. Ct. 1061, 1069–70 (1995) (statutory language ―must be 

understood against the background of what Congress was attempting to 

accomplish‖).

The statute intends to immunize land owners from suit where the injured 

party was engaging in activity which bears some risk of danger. See House 

Study Group, Bill Analysis, Tex. H.B. 749, 67th Leg., R.S. (1981) (stating that 

―[t]he original purpose of [the Recreational Use Statute] was to keep private land 

 

3While we note that Justice Hankinson‘s comments appear in a dissenting 

opinion, the supreme court has not taken a contradictory position. See Torres, 

89 S.W.3d at 615 (holding, ―in light of the general wording of the Texas statute 

and the purpose of the statute,‖ that swinging on a swing is recreation).
15

open for hunting, fishing, and camping‖ and that many other activities added to 

the statute ―require wide open spaces or lakes and streams‖). A wedding is not 

the type of activity in which people engage assuming a risk of injury from physical 

activity. Thus, we do not think that the wedding transforms from a ceremony to 

recreation simply because it occurred outside. We believe there has to be 

something more—an activeness, a physical exertion, or immersion in the 

physical elements of nature—that is essential to finding an activity ―associated 

with enjoying nature or the outdoors‖ as the statute intends. Cf. Torres, 89 

S.W.3d at 615 (holding that swinging on a swing set is a type of activity 

associated with enjoying the outdoors); City of Lubbock v. Rule, 68 S.W.3d 853, 

858 (Tex. App.—Amarillo 2002) (holding that ―journeying to a park to enjoy its 

facilities and playground equipment is akin to  ̳picnicking‘ (albeit without the food)

and within the category of an  ̳activity associated with enjoying nature or the 

outdoors‘‖), overruled on other grounds by State v. Shumake, 199 S.W.3d 279 

(Tex. 2006).

To be a guest at a wedding is not an activity so similar to the sports and 

hobbies listed in the Recreational Use Statute that we think the legislature 

intended its inclusion. See Gustafson, 513 U.S. at 575, 115 S. Ct. at 1069–70 

(defining ―communication‖ to mean only public communications); Tex. Dep’t of 

Transp. v. York, 284 S.W.3d 844, 847–48 (Tex. 2009) (refusing to define ―special 

defects‖ to include loose gravel because it did not share characteristics with the 

listed examples in the statute); Fiess v. State Farm Lloyds, 202 S.W.3d 744, 751 
16

(Tex. 2006) (holding that ―water damage‖ in an insurance policy must mean 

―something more substantial than every tiny water leak or seep‖ such as ―the 

kinds of uncommon and catastrophic losses for which homeowners obtain 

insurance, not for the common maintenance items for which they do not‖). We 

therefore hold that the Sullivans were not engaging in recreation at the time of 

the accident. Thus, the Recreational Use Statute does not apply.4

III. Duty Owed Under § 101.022

Under the Tort Claims Act, the City owes the Sullivans a duty ―that a 

private person owes to a licensee on private property, unless the claimant pays 

for use of the premises.‖ Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If the 

Sullivans paid for the use of the premises, they are invitees. See Seppy, 301 

S.W.3d at 441; Garcia v. State, 817 S.W.2d 741, 742 (Tex. App.—San Antonio 

1991, writ denied). This distinction is relevant to the elements of the Sullivans‘ 

cause of action. State v. Williams, 940 S.W.2d 583, 584–85 (Tex. 1996). If the 

Sullivans were licensees, they must show that the City had actual knowledge of 

the unreasonable risk of harm created by the stairs. See State Dep’t of 

Highways v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). If the Sullivans are 

 

4Because the Recreational Use Statute does not apply, we need not 

address the City‘s argument that Mrs. Sullivan‘s injuries were caused ―by her 

own act.‖ See Tex. Civ. Prac. & Rem. Code Ann. § 75.002(c)(3). Nor do we 

address the Sullivans‘ issue concerning the required duty owed by the City to 

trespassers.
17

invitees, they only need to show that the City knew or should have known of the 

risk. Id.

The City argues that the Sullivans are licensees and that they have not 

pleaded facts demonstrating that the City had actual knowledge of the dangerous 

condition of the steps. The Sullivans claim they are invitees because their 

grandson-in-law, Jeremy Tekell, paid a rental fee for the Garden. The City 

argues that the rental fee was not an ―admission payment‖ for the guests 

because Mr. Tekell paid a flat fee. That is, Mr. Tekell would have paid the same 

rental fee regardless of the number of guests.

The statute does not require a per capita admission price. The statute‘s 

only requirement is that the claimant ―pays for use of the premises.‖ Tex. Civ. 

Prac. & Rem. Code Ann. § 101.022(a). Mr. Tekell‘s rental fee included the 

admission of ―up to 250 guests.‖ It appears from the form agreement that 

another price would have been charged if more than 250 guests attended. 

Further, the wedding was held after normal park hours, and the park remained 

open only because Mr. Tekell had reserved it. The peace officer hired to provide 

security at the wedding testified that part of his duty was ―making sure that no 

uninvited guests come in‖ and that he could arrest any ―wedding crashers.‖ 

Visitors were only admitted to the Garden after they identified themselves as 

wedding guests. See Dallas-Fort Worth Int’l Airport Pub. Facility Improvement 

Corp. v. Banks, No. 2-09-176-CV, 2010 WL 87865, at *4 (Tex. App.—Fort Worth 

Jan. 7, 2010, pet. denied) (mem. op.) (noting that evidence that appellant would 
18

not have been granted entry into airport terminal where she fell created a 

genuine issue of material fact concerning her status as an invitee).

5

 Had Mr. 

Tekell not paid the rental fee to lease the Garden, the Garden would have been 

closed to everyone, including the Sullivans. It was Mr. Tekell‘s rental fee which 

allowed the Sullivans‘ use of the premises that night. If the bride and groom had 

less than 250 guests, then the cost per guest would increase but it would not 

lessen the fact that a fee was charged and paid for their entry.6

The City cites three cases in support of its argument that the rental fee was 

merely related to the use of the premises, not for the use of the premises. See 

Clay v. City of Fort Worth, 90 S.W.3d 414 (Tex. App.—Austin 2002, no pet.); City 

of Dallas v. Ortiz, No. 05-99-00436-CV, 2000 WL 688208 (Tex. App.—Dallas 

May 18, 2000, pet. denied) (not designated for publication); Graf v. Harris Cnty., 

877 S.W.2d 82 (Tex. App.—Houston [1st Dist.] 1994, writ denied). In both Ortiz

 

5

In Banks, as the City points out, there was a fact issue as to whether the 

plaintiff was an invitee. 2010 WL 87865, at *4. The issue existed because the 

plaintiff paid for use of the airplane, not directly for entry to the terminal where 

she fell. Id. Here, the Sullivans specifically paid (or were paid for) for the use of 

the premises on which Mrs. Sullivan fell, and thus no similar fact issue exists.

6We do not think it dispositive that it was Mr. Tekell and not the Sullivans 

themselves who paid the rental fee. The fee was paid for their entry, and without 

that fee, no guests could enter. Mr. Tekell paid for the entry of up to 250 guests, 

and the Sullivans were two of those guests. In any event, the City waived any 

argument as to the definition of ―claimant‖ under the statute by failing to make the 

argument until its motion for rehearing. See Coastal Liquids Transp., L.P. v. 

Harris Cnty. Appraisal Dist., 46 S.W.3d 880, 885 (Tex. 2001). In fact, the City 

claimed any such argument was a ―non-sequitur‖ and refused to address it on 

appeal.
19

and Graf, the plaintiff never claimed to have paid for entry to the premises. Ortiz, 

2000 WL 688208, at *3; Graf, 877 S.W.2d at 85. In Clay, the court dismissed the 

plaintiff‘s argument that because her employer, Southwestern Bell, was in a 

revenue-sharing relationship with the city, Southwestern Bell had paid for the use 

of city property where it had installed telephones. 90 S.W.3d at 417. In doing so, 

the court stated that ―[o]nly a fee charged for entry onto a particular premise is 

sufficient to confer invitee status under section 101.022(a).‖ Id. Unlike the cases 

cited by the City, this fee was tied to entry on to a particular premise (here, the 

Garden) for specific people (up to 250 wedding guests) at a specific time (from 

4:00 pm to 10:00 pm on April 20, 2007). No one else would have been granted 

entry at that time. As a matter of law, the Sullivans paid for use of the premises 

and thus are owed the duty the City would owe to an invitee. See Miranda, 133 

S.W.3d at 226 (noting that undisputed evidence of jurisdictional facts establishes 

a trial court‘s jurisdiction as a matter of law).

The City has consistently argued that invitee status does not apply to the 

Sullivans without attacking their cause of action if invitee status did apply. We 

hold, however, that it does. As invitees, the Sullivans only needed to plead facts 

sufficient to allege that the City knew or should have known of the risk of danger 

from the low lighting conditions. See Payne, 838 S.W.2d at 237. Because the 

City has not argued that the Sullivans have not pleaded sufficient facts to support 

their allegation that the City should have known of the dangerous condition, it
20

waived any complaint as to that issue, and we deny its plea to the jurisdiction on 

these claims as a matter of law.7 See Miranda, 133 S.W.3d at 227.

Conclusion

We affirm the trial court‘s order granting the plea to the jurisdiction as to 

the previously specified claims that challenge the design of the Garden. 

Because the Sullivans claim that the City should have known of the dangerous 

condition of the stairs is uncontested, we hold that the trial court erred in part in 

granting the City‘s plea to the jurisdiction. As to those claims regarding 

operational decisions, we reverse the trial court‘s judgment and remand the case 

for further proceedings consistent with this opinion.

LEE GABRIEL

JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: May 19, 2011

 

7

The City even admitted in its brief on appeal that ―[the Sullivans‘] evidence 

would support a premises liability claim for a dangerous condition.‖